After failing to quash the rumours and have the comments scoured from websites, Burke filed suit last Friday in B.C. Supreme Court against 18 unidentified users.

That was unfortunate timing for his wife, news anchor Jennifer Burke, who was about to host the B.C. political leaders’ debate on Monday, but he felt compelled.

“This was running around in the hockey world and people had questions about whether it did or did not happen,” explained Gall, of Heenan Blaikie LLP and one of B.C.’s leading labour lawyers.

“Brian could tell anyone he met (that) it didn’t happen, but it was on the Internet and there was enough talk in the hockey world that he wanted to address it. He talked to people in the hockey world about whether he should file suit. They said, ‘Do it!’ And his grown children said, ‘Drive a spike through it!’”

That should worry the 18 Internet commentators, as well as other Canadian social media users, given the huge legal liability that may be attached to defamatory online posts, warned Michael Smith, of Borden Ladner Gervais LLP. Especially with a motivated plaintiff like Burke.

“I think you can characterize this as fighting back against the bullies,” the Toronto defamation specialist said. “In my view, there’s far too much of this really inflammatory false posting online, and people do it under anonymity and they think they can remain anonymous and they think their comments don’t have consequences. … There are and can be consequences, serious consequences for this kind of conduct, and you have to take responsibility for what you say online.”

But Smith added that Burke had every reason to agonize about whether to file suit.

“By taking legal action, he risked drawing more attention to the rumours and spreading the story from the sports pages to business and breaking news,” he said.

It’s a dilemma facing many victims of defamation. Think of former 2010 Olympics boss John Furlong, who similarly turned to the courts to defend his reputation even though it magnified charges made in a Vancouver weekly newspaper into an international story.

As bad as public allegations may hurt, litigation draws even more attention to them and can exacerbate their damage, especially in the short term.

“For Furlong, it’s worse because he is facing adversaries who want to go to court,” said Burke’s lawyer Gall.

“None of (the individuals in Burke’s case) will stand up and say this is true, that their comments were privileged or fair comment or any other defence to defamation. It will just be a question of the apology or damages. ... We will never have a trial in this case.”

He said some of the pseudonymous individuals have contacted him: “A couple have already called and said, ‘I live in a basement. I drive a beat up ’70s car. I have nothing’.”

Zack Bradley, for instance, a 20-year-old Carleton University student, told The Toronto Star that he was one of the 18, but did not understand all the fuss:

“What I said wasn’t probably true, and I just removed it because I don’t want anything bad to happen in future.”

Gall said Burke was only interested in quashing the insinuations.

He filed the suit in B.C. although he has a home in Toronto and works for the Anaheim Ducks. That was likely a wise choice given that the law of defamation differs on both sides of the border and between the provinces.

In the U.S., online users have more protections, and as a public figure Burke gets less sympathy.

Similarly, Smith pointed out, Ontario courts haven’t settled on a limitation period for filing cyber-libel suits. Burke had more time to file in B.C., where the limitation period is set at two years.

Still he faces an uphill battle and must pursue legal orders to unmask those behind the scurrilous attacks — “Slobberface”, “Ncognito”, “Sir Psycho Sexy”, et al — an expensive and time-consuming endeavour that is not always fruitful.

Montreal lawyer Allen Mendelsohn, who represents the owner of a blog implicated in the suit, said most of the comments were benign.

“My impression of this lawsuit is that he’s taking four defamatory statements made by one person and is now attributing them to 18 people,” he said. “From a legal perspective, this is my problem with this entire lawsuit.”

Once Burke identifies the individuals, he must prove their remarks adversely affected his reputation.

“He is clearly committed to going the distance with this case, so there should be some interesting decisions coming out of the battle,” Smith said.

Mae’s lawyers said she is considering her legal options but supported Burke’s suit.

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